Professional Service Agreement

OSHA Moves to Delay Compliance Date for Electronic Injury and Illness Reporting

July 03, 2017

The Occupational Safety and Health Administration (OSHA) has proposed to delay the electronic reporting compliance date of the rule, Improve Tracking of Workplace Injuries and Illnesses, from July 1, 2017, to December 1, 2017.

OSHA said a further delay of the compliance date is appropriate to permit additional review into questions of law and policy. The delay will also give employers the same four-month window for submitting data that the original rule would have provided. Meanwhile, litigation challenging the rule creeps forward after a 60-day delay and an order denying requests to intervene by public health groups and unions.

About the rule. The final rule adds to the requirements that employers report to OSHA workplace fatalities, injuries requiring hospitalization, and those resulting in amputation or in loss of an eye. Under the final rule, employers in certain high-hazard industries with 250 or more employees will be required to provide OSHA electronic information to include the record of injuries and illnesses (300 log), the summary report (300A), and the information on the incident reports (301 form). Employers in the same high-hazard industries that have between 20 and 249 employees will need to electronically submit the summary report only. Employers are already required to complete and maintain these forms.

The final rule also clarifies employers’ obligation to inform employees of their right to report work-related illness and injury and addresses unlawful employer retaliation against workers for reporting a work-related injury or illness. Under the further-delayed rule, OSHA will make select data elements available to the public, while excluding personally identifiable information.

The correction to the final rule added an inadvertently omitted paragraph discussing employer obligations to provide to employees and their representatives access to OSHA illness and injury records.

Proposed compliance delay. The final rule set an effective date of January 1, 2017, for its electronic reporting requirements, and an initial deadline of July 1, 2017, as the date by which certain employers would be required to submit the information from their completed 2016 Form 300A to OSHA electronically. OSHA’s proposed delay would extend the initial submission deadline for 2016 Form 300A data to December 1, 2017, to provide the Trump Administration "an opportunity to review the new electronic reporting requirements prior to their implementation and allow affected entities sufficient time to familiarize themselves with the electronic reporting system, which will not be available until August 1," according to OSHA’s notice.

The proposed five-month delay would be effective on the date a final rule (regarding the delay) is published in the Federal Register.

Look for other changes. OSHA said it also intends to issue a separate proposal "to reconsider, revise, or remove other provisions of the prior final rule." The agency will seek comment on that separate proposal when it is made.

Comments. Comments on the proposed delay of the July 1, 2017, compliance date to December 1, 2017, may be submitted electronically at, the Federal e-Rulemaking Portal, or by mail or facsimile. The deadline for submitting comments is July 13, 2017. See OSHA’s notice for further information about submitting comments.

Litigation challenging the rule. In a complaint filed on January 4, 2017, the National Association of Home Builders of the United States, Chamber of Commerce of the United States of America, Oklahoma State Home Builders Association, State Chamber of Oklahoma, National Chicken Council, National Turkey Federation, and U.S. Poultry & Egg Association challenged the final rule to Improve Tracking of Workplace Injuries and Illnesses under the Administrative Procedures Act. They contended that the rule goes beyond the authority that Congress granted to OSHA under the Occupational Safety and Health Act. Further, the final rule is arbitrary, capricious, and otherwise contrary to law, and portions of it were promulgated contrary to procedure required under the APA, according to the complaint. The plaintiffs also assert U.S. Constitutional violations of their members’ rights under the First and Fifth Amendments.

In March 2017, Public Citizen and other public health groups sought to intervene as defendants in the lawsuit, pointing to, among other things, the Trump Administration’s recent executive orders and memoranda reflecting "an intent to rescind or weaken regulations promulgated by the prior administration." The public health groups also said "recent news reports indicate that OSHA is backing away from the electronic submission and public disclosure requirements."

In a motion to intervene in the case, Public Citizen Health Research Group, American Public Health Association, Council of State and Territorial Epidemiologists, and Center for Media and Democracy argued that they have interests in preserving OSHA’s rule, that the disposition of the lawsuit in their absence would likely impair or impede their interests, and that none of the current parties to the lawsuit can be counted on to protect their interests. A group of unions filed a similar motion to intervene in the case.

Litigation delayed, intervention denied. Also in March, the Department of Labor sought a 60-day stay of the case, which the court granted on April 5. On June 26, the court denied the motions to intervene filed by the public health groups and the unions, finding they had failed to meet the legal prerequisites for intervention, noting in particular that the would-be intervenors’ objectives were identical to those of the government. "Here, because the Government has stated on record that it intends to defend the Rule, the particular interest of the movants—preserving the Rule—mirrors that of the Government," wrote the court.

The court further observed, "The arguments for intervention in this case essentially boil down to fears over what OSHA, given the new Presidential Administration, might or might not do when it comes to defending the Rule." The court further observed that "no would-be intervenor can ever be wholly certain of a litigant’s future position. Granted, the Court is aware of the Executive Branch’s signals that it may rescind regulations passed by previous Administrations.[] But there is no signal as to the Department of Justice’s plans for this specific regulation."

Acknowledging that things may change going forward, the court denied both motions to intervene without prejudice, so the requests could be renewed should the government change its position. Notably, as the court pointed out, should the government amend or repeal the final rule’s provisions through rulemaking, that action may moot the complained-of defects the intervenors seek to defend.